Please read these terms of service (the “Agreement”) carefully and retain them for your future reference. The Agreement contains the general terms, conditions and disclosures that govern your use of the Highbeam Instant Payouts program (the “Instant Payouts”) provided by Highbeam Inc. (“Highbeam”).
Please read this Agreement carefully and retain it for your future reference. By requesting, accepting, or otherwise using the Instant Payouts, you agree to be bound by this Agreement.
When you see the words “we,” “us,” or “our” in this Agreement, it refers to Highbeam and any of Highbeam’s affiliates, successors, assignees, agents or service providers. When you see the words “you” or “your,” it refers to you, the owner of the Account, as well as your personal representatives, executors, administrators, and successors.
IMPORTANT NOTE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS AND YOUR RIGHT TO A JURY. THE TERMS OF ARBITRATION AND THE WAIVER APPEAR IN SECTION 6 OF THIS AGREEMENT.
1. What Is a Payout?
If you are eligible, the Instant Payouts program allows you to receive free advances on payments which have been initiated, but not yet paid, from Shopify or Amazon (each, a “Payout”) to your Highbeam Deposit Account (the “Account”) to help you cover upcoming expenses or avoid having insufficient funds in your Account for a transaction. There are no costs for access to the Instant Payouts program and any Payout you choose to receive is free. Typically, Payouts will be for the full value of the incoming payment from Amazon or Shopify, but this amount may be reduced by Highbeam in its sole discretion based on factors including, but not limited to, the current balance in your account, the number of previous Payouts you have repaid and the length of your customer relationship.
Once you set up Instant Payouts, the Payouts will be automatically deposited into your Account when we are notified there is a payment in progress, provided that your Account is in good standing and you are eligible to receive a Payout. You may only receive one (1) Payout at a time from each of Shopify and Amazon. We will not offer you any additional Payouts from any store if you have not fully repaid a prior Payout from any store. You may turn off Instant Payouts at any time.
2. Your Eligibility for Payouts
Instant Payouts are available to United States registered businesses in good standing which have a valid US Federal EIN and a state tax identification number.
You must also have an Account with us which has been designated as your payment account for Shopify and/or Amazon. We determine the amount of any Payouts that you are eligible for based on, among other things, your anticipated payment amount, information about your account(s) with us and other financial institutions, payment processors, Google Pay, PayPal and Amazon Pay and information about your Shopify store as well as your Account and payment history. We may change our eligibility criteria at any time with or without notice to you.
3. Payout Repayment
Each Payout is automatically repaid in one (1) installment by deduction from the associated payment you receive from Shopify or Amazon. If the associated payment received is not sufficient to repay the Payout, we reserve the right to deduct the remaining Payout amount from your Account or from subsequent payments you receive into your Account. Before you can use the Instant Payouts, you will be asked to agree that each Payout will be repaid as soon as the associated payment is deposited into your Account by either Amazon or Shopify and to authorize us to process an electronic debit from your Account on that date. You may also repay a Payout at any time by authorizing a payment through the Online Banking Services provided to you by the Highbeam (see Section 1.3 of the Highbeam Deposit Account Agreement).
If any payment you have authorized is returned by us or we are otherwise unable to process a payment, we will attempt to debit your Account additional times. We are not responsible for any overdraft fees, over-the-limit fees, insufficient fund charges, or any other bank fees that result from your failure to maintain a sufficient balance in your Account. We make no warranties that an overdraft will not occur.
We will not provide you any further Payouts while any amount remains unpaid under the Instant Payouts program.
4. How to Contact Us
You may contact us with any questions or concerns regarding the Instant Payouts. All communication between you and us will be handled by the Highbeam. The best way to contact Highbeam is through email at firstname.lastname@example.org You may also contact us through the Online Banking Services.
5. Other Terms and Conditions
5.1. Our Business Days
Our business days are Monday through Friday, excluding federal holidays.
5.2.Third-Party Service Providers
5.3 Your Privacy
5.4. Cell Phone Communications
By providing us with your cellular phone or other wireless device number, you are expressly consenting to receiving communications at that number—including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an auto-dialer—from us and our affiliates and agents. This consent applies to all telephone numbers you provide to us now or in the future. Your telephone or mobile service provider may charge you for these calls or messages. You also agree that we may record or monitor any communications for quality control and training purposes.
5.5. No Assignments
Your access to the Instant Payouts and your obligations under this Agreement are not transferable and not assignable as collateral for a loan or for any other purpose. We may transfer our rights under this Agreement.
5.6. Limitation of Liability and Disclaimer of Warranty
EXCEPT AS REQUIRED BY LAW, WE ARE NOT LIABLE FOR ANY CLAIMS, COSTS, LOSSES, OR DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM OUR FAILURE TO ACT, OR ANY DELAY BEYOND TIME LIMITS PRESCRIBED BY LAW OR PERMITTED BY THIS AGREEMENT IF SUCH FAILURE OR DELAY IS CAUSED BY MAINTENANCE OR INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES, UNUSUAL TRANSACTION VOLUME, SUSPENSION OF PAYMENTS BY ANOTHER FINANCIAL INSTITUTION, FIRE, NATURAL DISASTERS, ELEMENTS OF NATURE, GOVERNMENT ACTION, ACTS OF WAR, TERRORISM OR CIVIL STRIFE, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL. EXCEPT AS REQUIRED BY LAW, OUR LIABILITY TO YOU FOR A CLAIM IS LIMITED TO THE FACE VALUE OF THE ITEM OR TRANSACTION, OR THE ACTUAL VALUE OF ANY FUNDS NOT PROPERLY CREDITED OR DEBITED. IN NO EVENT WILL WE OR UNIT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS REQUIRED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE SHALL ONLY BE RESPONSIBLE AND LIABLE FOR OUR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT. WE SHALL NOT BE LIABLE TO ANY THIRD PARTY OR FOR ANY ACT OR OMISSION OF YOURS OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES USED BY US IN EXECUTING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR PERFORMING A RELATED ACT AND NO SUCH THIRD PARTY SHALL BE DEEMED TO BE OUR AGENT.
IN ADDITION, EXCEPT AS REQUIRED BY LAW, HIGHBEAM IS NOT LIABLE FOR ANY UNAUTHORIZED ACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE TO YOUR USE OF THIRD-PARTY COMMUNICATION CHANNELS NOT OFFERED BY US.
ALL INSTANT PAYOUT FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE INSTANT PAYOUTS FEATURES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
You agree to indemnify and hold us and our officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.
Equally, you agree to indemnify and hold Unit and its officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.
5.8. Changes in Terms and Additional Services
We may change this Agreement, or any fees and features of the Instant Payouts, at any time by posting an amended Agreement on Highbeam Inc.’s website, https://www.highbeam.co and any such amendment shall be effective upon posting. We will give you advance notice of any change where required by law. We may provide such notice to you with your statement, electronically, or by mail. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service. We may change or terminate this Agreement without notice at our discretion or to comply with any appropriate federal or state law or regulation.
5.9. No Waiver of Rights
We may waive or decline to enforce any of our rights under this Agreement without obligating ourselves to waive such rights in the future or on any other occasion. We may release any other person obligated under this Agreement without affecting your responsibilities under this Agreement.
5.10.Conflicts and Section Headings
If there is a conflict between this Agreement and any other document or statement made to you concerning the Instant Payouts, this Agreement will govern. If there is a conflict between this Agreement and any other document or statement made to you concerning any services or products other than the Instant Payouts, the separate terms and conditions applicable to that service or product will govern. Section headings that appear in this Agreement are for convenience purposes only and are intended to help you find information. They should not be construed as affecting the meaning of the Agreement.
If any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected. To the extent permitted by law, the parties waive any provision of law which prohibits or renders unenforceable any provisions of this Agreement, and to the extent that such waiver is not permitted by law, you and we agree that such provision will be interpreted as modified to the minimum extent necessary to render the provisions enforceable.
5.12. Governing Law, Forum and Time Limits
All actions relating to your Account and this Agreement will be governed by the laws and regulations of the United States and the State of New York, irrespective of conflict of law principles. You agree that any dispute arising under this Agreement or relating in any way to your relationship with us that is not arbitrated will be resolved in a federal or state court located in New York, NY and that you will be subject to such court’s jurisdiction.
Except where prohibited by law, you agree that you must file any lawsuit or arbitration against us within two (2) years after the claim arises unless federal or New York law, or another agreement you have with us, provides for a shorter time. If federal or New York law requires a longer time period than the time periods in this Agreement, you agree to the shortest time period permitted under the law.
6. Arbitration and Waivers
BE SURE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
6.1. Election to Arbitrate
You and Highbeam agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 6 (the “Arbitration Provision”). As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and Highbeam on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. Please note that you may continue to assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
6.2. Applicability of the Federal Arbitration Act; Arbitrator’s Powers
This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
6.3 Informal Dispute Resolution
If a Claim arises, our goal is to address your concerns and, if we are unable to do so, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will first submit your Claim to us by email at email@example.com and provide us with the opportunity to resolve your concern prior to initiating arbitration.
6.4. Arbitration Procedures
The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA's web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. The arbitration will be held in New York County, NY or any other location we agree to.
Filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. The administrator's hearing fees will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
6.6. Limitation of Liability and Disclaimer of Warranty
Within thirty (30) days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within thirty (30) days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.
6.7. No Class Actions
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 6.7, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 6.7 shall be determined exclusively by a court and not by the administrator or any arbitrator.
6.8. Survival and Severability of Arbitration Provision
This Arbitration Provision shall survive the termination of this Agreement. If any portion of this Arbitration Provision other than Section 6.7 is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision’s limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 6.7 are finally adjudicated pursuant to the last sentence of Section 6.7 to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
6.9. Judicial Forum for Claims
Except as otherwise required by applicable law, if this Arbitration Provision is found not to apply to you or your Claim, you and Highbeam agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of New York. Both you and Highbeam consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
6.10. WAIVER OF RIGHT TO LITIGATE
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVING THAT RIGHT BY AGREEING TO THIS AGREEMENT AND ARBITRATION PROVISION.